Opinion
No. 1358 C.D. 2012
03-28-2013
C. Harper Kia, Petitioner v. Department of State, The State Board of Vehicle Manufacturers, Dealers and Salespersons, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
C. Harper Kia (Dealership) petitions for review of the July 11, 2012 order of the State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) denying Dealership's motion for the Board to reconsider its June 14, 2012 memorandum order dismissing Dealership's protest. As its sole issue on appeal, Dealership contends that the Board erred in denying its motion for reconsideration because the Board failed to correct what can best be described as a clear but harmless typographical error. We affirm the Board's order and grant the request of intervenor, Kia Motors America, Inc. (Manufacturer), for attorney's fees and costs pursuant to Pa. R.A.P. 2744.
Under section 8 of the Board of Vehicles Act (Act), Act of December 22, 1983, P.L. 306, as amended, Act 2011-65 (S.B. 419), added by the Act of July 7, 2011, P.L 285, 63 P.S. §818.8, a dealer who believes that a manufacturer or distributor with which it holds a franchise has violated the Act may file a protest with the Board.
On February 12, 2012, Dealership filed a protest against Manufacturer under section 12.a of the Act, 63 P.S. §818.12.a, challenging Manufacturer's plan to place a new franchise in Uniontown, Pennsylvania, and alter Dealership's area of responsibility. By memorandum order dated June 14, 2012, the Board dismissed Dealership's protest. The Board concluded that Dealership could not challenge Manufacturer's change to Dealership's area of responsibility under section 12.a of the Act because Manufacturer informed Dealership of the planned change on January 3, 2011, and section 12.a did not become effective or applicable until September 5, 2011.
In general, section 12.a of the Act, July 7, 2011, P.L. 285, makes it unlawful for any manufacturer or distributor, officer, agent or any representative of a manufacturer or distributor to unreasonably alter a new vehicle dealer's area of responsibility.
In dismissing the protest, the Board's recitation of the facts included an obvious typographical error, which is underlined for the convenience of the reader:
[B]y letter dated January 24, 2011, [Manufacturer] notified [Dealership] that it did receive [Dealership's] ... letter, and that [Manufacturer] was moving forward with its plan to modify [Dealership's] area of responsibility. By letter dated December 16, 2011, [Dealership] notified [Manufacturer] that they were aware of [Dealership's] plan to place a new Kia franchise in Uniontown, PA, and wanted to know why they did not receive prior notice of this action or an opportunity to proceed with a protest under the [Act]....(Board's memorandum order at 1).
On June 26, 2012, Dealership filed a motion for reconsideration. In this motion, Dealership briefly noted that the word "Dealership's" underlined above was incorrect and that the correct party is "Manufacturer's." On a more substantive basis, Dealership sought to modify its protest nunc pro tunc to add a protest claim pursuant to a different section of the Act. On July 11, 2012, the Board entered an order denying reconsideration, and Dealership filed a petition for review with this Court on July 18, 2012.
On July 25, 2012, Manufacturer filed a motion to dismiss on the ground that Dealership's petition for review was filed more than thirty days after the Board's June 14, 2012 memorandum order dismissing the protest. By order dated August 16, 2012, this Court denied the motion to dismiss, concluding that Dealership's petition was filed properly and timely from the Board's July 11, 2012 order denying reconsideration. See Keith v. Department of Public Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988) (concluding that where a petitioner did not file a timely appeal from an administrative agency's final order on the merits, but filed a timely appeal from the administrative agency's subsequent order deny reconsideration, this Court could only review the order denying reconsideration); Southwest Pennsylvania Natural Resources, Inc. v. Department of Environmental Resources, 465 A.2d 108 (Pa. Cmwlth. 1983) (explaining that statutory text and case law permit a petitioner to file an appeal from the denial of a petition for reconsideration). Because Dealership's appeal stems from the Board's order denying reconsideration, this Court can only address those issues raised in Dealership's motion for reconsideration. Keith.
On appeal, Dealership argues that the Board erred in denying its motion for reconsideration because on one occasion the Board's memorandum order states that Dealership planned to start a new franchise when in fact it was Manufacturer who devised such a plan. In its request for relief, Dealership asks this Court to vacate the Board's order denying reconsideration and remand the case for further proceedings.
The decision to grant or deny a request for reconsideration is a matter of administrative discretion and will be reversed only for an abuse of that discretion. Modzelewski v. Department of Public Welfare, 531 A.2d 585 (Pa. Cmwlth. 1987).
As evidenced from the above-quoted passage, Dealership's alleged legal error is nothing more than a typographical or clerical mistake whereby the Board inadvertently switched the parties' names. In its memorandum order, the Board referred to the plan change as being Manufacturer's plan at least six times, and Dealership cannot reasonably contend that the Board's typographical error was misleading or in any way caused confusion. The Board's mistake also has no substantive or procedural effect on the outcome of the case and Dealership. Because we conclude that typographical error is utterly de minimis in nature, we decline to find that the Board abused its discretion or committed an error of law. See Davidson v. Department of Transportation, Bureau of Traffic Safety, 530 A.2d 1021 (Pa. Cmwlth. 1987) (dismissing the appellant's argument that his license could not be revoked because the conviction certificate contained a mistake regarding the date of the violation as "immaterial" to any legal issue in the case). Accordingly, we affirm the Board's decision.
Moreover, Dealership arguably waived any challenge to the Board's mistake because it merely pointed out the typographical error to the Board in a passing reference in its motion for reconsideration and did not expressly request the Board to correct it. (See R.R. at 92a-93a.) We note that the proper procedure to correct obvious typographical mistakes is not to appeal to this Court, but to petition the Board to exercise its inherent authority to correct clear clerical errors that appear on the face of its orders. See generally Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007) (discussing the "time-honored inherent power" of courts to correct patent errors despite the absence of traditional jurisdiction).
In its brief, Manufacturer moves for attorney's fees and costs pursuant to Pa. R.A.P. 2744, arguing that Dealership's appeal is frivolous and without any basis in law or fact. Under Pa. R.A.P. 2744, this Court may award reasonable counsel fees and costs if we determine "that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious."
[T]here is no bright line applicable to a determination under Rule 2744, and there certainly is no requirement that a party's conduct be outrageous in order to support an award of counsel fees for a frivolous appeal. As previously stated, an appeal is frivolous when it has no basis in law or in fact. Stated otherwise, a frivolous appeal is one in which no justifiable question has been presented and which is readily recognizable as devoid of merit in that there is little prospect of success. Moreover, as we are mindful of the need to avoid unjustly penalizing an appellant, so too are we mindful that there exists a duty on the part of counsel not to pursue baseless claims or frivolous issues.Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 30 A.3d 568, 579-80 (Pa. Cmwlth. 2011) (citations and internal quotation marks omitted).
In Davidson, the Department of Transportation received a conviction certification from the clerk of a trial court and revoked the appellant's operating privileges for one year. The licensee appealed to the trial court, which affirmed the revocation of his operating privileges. On further appeal to this Court, the licensee argued that his revocation could not stand because the conviction certification erroneously listed January 23, 1984, as the date the violation occurred. This Court disagreed, concluding that there was no dispute that the licensee was convicted as stated on the conviction certification. We further concluded that "the erroneous listing on that certification of an incorrect date of the act on which the conviction is based is immaterial" to the legal issue of whether the licensee's driving privileges could be revoked. Id. at 1022-23. Due to the frivolous nature of the appeal, which we found to be "readily recognizable as devoid of merit," this Court granted the Department's request for counsel feels under Pa.R.A.P. 2744. Id.
Here, similar to the situation in Davidson, Dealership relies entirely on a legally insignificant typographical error that is immaterial to the merits of this case and the issue of whether Manufacturer violated the Act. Indeed, it is apparent that Dealership instituted this appeal, not in a good-faith attempt to challenge the substantive legal or factual basis for the Board's decision, but rather, for the sole purpose of delaying the case under the guise of validating a simple grammatical mistake. Therefore, we conclude that Dealership's appeal is frivolous and readily recognizable as devoid of merit. Accordingly, we grant Manufacturer's request for reasonable counsel fees and costs and direct Manufacturer to file a bill of costs pursuant to Pa. R.A.P. 3751. See Ausburn v. Workers' Compensation Appeal Board (Merrell & Garaguso), 698 A.2d 1356 (Pa. Cmwlth. 1997) (awarding counsel fees pursuant to Pa. R.A.P. 2744 and directing that a bill of costs be filed pursuant to Pa. R.A.P. 3751).
Pa. R.A.P. 3751 states that a party desiring costs in the Commonwealth Court "shall state them in an itemized and verified bill of costs which such party shall file with the Prothonotary within 14 days after entry of the judgment or other final order." --------
For the above-stated reasons, the Board's order is affirmed and Manufacturer's request is granted.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 28th day of March, 2013, the July 11, 2012 order of the State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) is hereby affirmed, and the request of Kia Motors America, Inc. (Manufacturer) for attorney's fees and costs pursuant to Pa. R.A.P. 2744 is granted. Manufacturer shall file a bill of costs pursuant to Pa. R.A.P. 3751.
/s/_________
PATRICIA A. McCULLOUGH, Judge